IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Robert Gregory Ketter,

Plaintiff

 v.

City of Newark, Ohio, et al.,

Defendants

:

:

:

:

:

Civil Action 2:11-cv-00734

Judge Watson

Magistrate Judge Abel

ORDER

This matter is before the Magistrate Judge on plaintiff Robert Gregory Ketter’s

September 17, 2013 motion to compel discovery (doc. 41). 

Federal Rule of Civil Procedure 26(b) provides that “[p]arties may obtain

discovery regarding any nonprivileged matter that is relevant to any party’s claim or

defense. . . . “ Fed. R. Civ. P. 26(b)(1). Relevant information need not be itself admissible,

“if the discovery appears reasonably calculated to lead to the discovery of admissible

evidence.” Id.

Diebold Interrogatory 6 & Newark Interrogatory 18. Interrogatory 6 directed to

Diebold states:

Please identify, per the instructions, all special or outside counsel who

were retained (or otherwise obtained) by you or the City of Newark to

provide legal service of any kind relating to plaintiff or human resources

matters, during the period 2003 through the present, briefly describing the

matter for which the individual or law firm was retained, the length of

representation and the amount of fees billed and paid during the

respective period. 

Case: 2:11-cv-00734-MHW-MRA Doc #: 62 Filed: 06/04/13 Page: 1 of 6 PAGEID #: <pageID>
Interrogatory 18 directed to the City of Newark states:

Please identify, per the instructions, all special or outside counsel who

were retained (or otherwise obtained) by or on behalf of the Newark Civil

Service Commission to provide legal service of any kind relating the

Newark Civil Service Commission or its Commissioners, during the

period 2003 through the present, briefly describing the matter for which

the individual or law firm was retained, the length of representation and

the amount of fees billed and paid during the respective period.

 Plaintiff argues that these interrogatories are relevant to determining the City of

Newark’s standard procedure for retaining outside counsel in human resource matters,

and whether the City deviated from that practice in this case. Plaintiff maintains that the

City has retained special counsel in approximately six other human resources related

cases.

In response, defendants argue that had plaintiff asked Mayor Deibold regarding

his statement made to the newspaper, he would have that learned that the comment

was based on the Mayor’s perception of the relationship between the City Law Director

and Ms. Loomis. Defendants further argue that plaintiff’s requests are overbroad

because it seeks human resources matters dating back to 2003 even though plaintiff was

not terminated until 2009. Diebold made the decision to terminate plaintiff, and

information concerning the hiring of outside counsel by other decisionmakers is not

relevant. Defendants also maintain that the amount of fees and length of representation

is also irrelevant because each case differs with respect to witnesses, venue, trial

schedule and motion practice. 

2

Case: 2:11-cv-00734-MHW-MRA Doc #: 62 Filed: 06/04/13 Page: 2 of 6 PAGEID #: <pageID>
Plaintiff argues that although defendants argues that Mayor Diebold was the

decisionmaker, Diebold testified that the decisionmakers in any significant disciplinary

decisions were himself, the relevant director, which in this case was Director Carr, Sears

and the Law Director. Diebold testified that any one of these decisionmakers could veto

a decision. Sears has been the Human Resources Director or Assistant Director since

1992. Plaintiff seeks discovery related to the decision to seek outside counsel as

evidence of deviation from the established procedure. Because Diebold was instructed

not to respond to questions regarding who recommended or requested outside counsel

at this deposition, it is simply not clear who the decisionmaker was or who

recommended that outside counsel be obtained. 

Plaintiffs also argue that because so few cases are involved, the request is not

burdensome. The length of representation is relevant to determining whether

defendants “lawyered up” early in this case. Plaintiffs maintain that the gross fee

information is relevant to determine the extent of outside counsel’s involvement and

not burdensome given that it is easily determined from the requested documents. 

The requests may lead to the discovery of admissible evidence. Plaintiff believes

that defendants’s actions were inconsistent with the typical procedures followed in

similar circumstances. Plaintiff is entitled to conduct discovery to test this theory.

Defendants are ORDERED to respond to Diebold Interrogatory 6 and Newark

Interrogatory 18 within fourteen (14) days of the date of this Order.

3

Case: 2:11-cv-00734-MHW-MRA Doc #: 62 Filed: 06/04/13 Page: 3 of 6 PAGEID #: <pageID>
Diebold, Carr & Sears Interrogatory 21. Interrogatory 21 directed to Diebold,

Carr and Sears states:

Identify any and all e-mail accounts used by you from 2003 to the present,

whether provided by the City of Newark, privately or otherwise.

Defendants argue that there is no evidence to suggest that any personal email accounts

were used for any purposed relating to Mr. Ketter’s termination. Defendants maintain

that their personal email accounts contain confidential and privileged information such

as banking and credit card statements. Defendants contend that should not be

permitted access to defendants’ email accounts to invade their privacy and pilfer

through their personal emails. Plaintiff has not requested access to these accounts; he has

simply asked that all email accounts be identified. While it is possible that personal email

accounts could contain relevant documents, this request does not seek access to those

accounts. Defendants are ORDERED to respond to Interrogatory 21. 

City of Newark, Diebold, Carr & Sears Document Request 13. Document request

13 seeks any and all contracts with outside legal counsel identified in responses to

earlier interrogatories. Plaintiff maintains that this information is important to

determine the timing and manner of retaining outside counsel in Ketter’s case as

compared to prior cases. Defendants maintain that this information is protected under

the attorney-client privilege. 

Although contracts for legal services and engagement letters might contain

privileged communications, billing records and invoices are generally not protected.

4

Case: 2:11-cv-00734-MHW-MRA Doc #: 62 Filed: 06/04/13 Page: 4 of 6 PAGEID #: <pageID>
“Typically, the attorney-client privilege does not extend to billing records and expense

reports.” Evenflo Co., Inc. v. Hantec Agents Ltd., No. 3:05-CV-346, 2006 WL 2945440 at *4

(S.D. Ohio Oct. 13, 2006)(quoting Chaundhry v. Gallerizzo, 174 F.d3 394, 402 (4th Cir.

1999)). Invoices that “reveal the motive of the client in seeking representation, litigation

strategy or the specific nature of the services provided are privileged.” Id. Defendants

are ORDERED to produce the documents sought in Request 13. To the extent that

defendants believe documents are protected under the attorney-client privilege,

defendants are DIRECTED to provide a privilege log. I note, however, that “a blanket

assertion of privilege regarding attorney fee bills is typically not appropriate.” Penn,

LLC v. Prosper Bus. Dev. Corp., No. 2:10-cv-00993, 2012 WL 3583258 at *14 (S.D. Ohio

Aug. 20, 2012). Additionally, defendants have the burden of demonstrating that the

privilege applies. 

City of Newark, Diebold, Carr & Sears Document Request 14. Document request

14 seeks any and all documents consisting of or relating to bills or invoices for legal

services submitted by, and payments made to, legal counsel identified in response to

Interrogatories 6 and 18. “Defendants are ORDERED to produce documents responsive

to request 14, but the City may redact any entry in the bill that would reveal an

attorney-client communication. 

City of Newark Document Request 17. Document request 17 seeks “[a]ny and all

documents, per the instructions, comprising, describing or memorializing any

communication identified in response to Interrogatory No. 14.” Defendants are

5

Case: 2:11-cv-00734-MHW-MRA Doc #: 62 Filed: 06/04/13 Page: 5 of 6 PAGEID #: <pageID>
DIRECTED to produce documents responsive to request 17. To the extent defendants

believe documents are privileged, defendants are DIRECTED to file a privilege log.

Deposition of Deibold. Diebold is ORDERED to respond to depositions questions

about his reasons for and involvement in discharging Sassen and hiring outside

counsel. He is not required to testify as to his communications with his attorney that

were privileged.

Conclusion. Plaintiff Robert Gregory Ketter’s September 17, 2013 motion to

compel discovery (doc. 41) is GRANTED.

Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.,

and Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14)

days after this Order is filed, file and serve on the opposing party a motion for

reconsideration by the District Judge. The motion must specifically designate the

Order, or part thereof, in question and the basis for any objection thereto. The District

Judge, upon consideration of the motion, shall set aside any part of this Order found to

be clearly erroneous or contrary to law.

s/Mark R. Abel 

United States Magistrate Judge

 

6

Case: 2:11-cv-00734-MHW-MRA Doc #: 62 Filed: 06/04/13 Page: 6 of 6 PAGEID #: <pageID>